The Supreme Court will hear urgent appeals from Tusla, the child and family agency, against orders it obtained relating to the special care of two vulnerable 16-year-olds whose lives are at serious risk.
Tusla is appealing against two separate High Court judgments concerning a girl and boy who both abuse drugs and regularly go missing from State care. An unusual feature of the cases is that Tusla accepts that each child requires special care but nevertheless contends the orders should be set aside.
Pointing to the exceptional urgency of the appeals, the Supreme Court scheduled for them to be heard next month. It also directed that the Attorney General must be served with the court papers so he has the option of participating in the appeals, even though he was not a party to the cases in the High Court.
The first set of orders under appeal was made last month by Mr Justice Mark Heslin, who directed Tusla to apply to the High Court for orders for the teenagers to be placed at one of three of the State’s special care units, specialist residential settings designed to address a child’s behaviour and risk of harm.
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He said the teenagers have suffered “grave harm” as a result of “egregious and extreme” delay in seeking to place them in special care, which Tusla did not suggest they do not need. Their rights are being breached by the agency’s “conscious and deliberate” decision not to comply with its statutory obligations, he said.
He made the orders, under the Child Care Act of 1991, despite hearing Tusla is facing a staffing crisis, which meant only 14 (now 15) of the 26 special care beds are usable and all are occupied. The agency also said there is a “chronic lack” of appropriate step-down placements, which is affecting its ability to move children on from special care.
Tusla is also appealing the subsequent special care orders made by Mr Justice John Jordan. It applied to him in compliance with the orders of Mr Justice Heslin, but it asked the court not to make the orders as it would have difficulty providing the teenagers with beds. Another child was in greater need of the one space currently available, it said.
Mr Justice Jordan said there was “no reasonable basis” upon which the court could or should refuse to grant the order the agency has sought in respect of the boy, while the court would be “failing in its obligations” if it refused a special care order for the girl.
A three-judge Supreme Court panel said in a determination published on Wednesday that the cases contain an issue of general public importance concerning the civil detention of among the most vulnerable children in the State and the jurisdiction of the courts to make mandatory orders against Tusla for such detention.
The appeals will be heard on December 15th.
In his judgment last month, Mr Justice Heslin said Tusla has grave concerns for the girl, believing she is being sexually exploited by adult men. She entered State care in mid-2021 after gardaí found her in the home of a known sex offender.
She misuses cocaine and alcohol and goes missing nearly every day from her residential placement, the judge noted.
The boy has been diagnosed with certain language disorders, meets the criteria for an autism diagnosis and has a heart condition, the judge said. He has been known to Tusla for more than a decade, has suicidal thoughts and thoughts of harming others and appears to be dealing drugs and consuming a “cocktail of drugs” on a daily basis.
He has been in 15 different placements, including emergency units, a hospital and hotels, since he went to emergency foster care last spring. He frequently goes missing from care, the judge said.
